Most of you may be painfully aware that the processing of H-4 extensions and H-4 EAD renewals has soared since the introduction of biometrics appointments in March of 2019. They are no longer being processed in days but, in years. Allegations have been raised charging that the delays are intentional and designed to thwart the ability of H-4 holders to work as part of the Trump Administration’s stated goal to eliminate the H-4 EAD rule. A summary of these charges was recently published in Forbes. A Federal Court is being asked to consider these claims in Gona vs. USCIS, filed on Feb 6, 2021. A copy of the memorandum filed in support of a preliminary injunction can be found here. A Federal Court in Texas denied similar claims in late January in the Kolluri case. In the interim, we can only hope that the Biden Administration will implement internal changes so that the process is once again timely and efficient.
The USCIS issued an email on Fri. to certain stakeholders which stated that they will begin to accept H-1b cap registrations for FY2022 H-1b cases on March 9th beginning at 12 eastern. The window for submitting registrations will end at noon eastern on March 25th. Notification to all “winners” will be given by March 31st. Filings may then commence. The registration fee will remain $10 and the information needed to register a potential applicant is also expected to be the same. We expect more information to be released this coming week and will update this and provide a live link when available. If you have the password to your organization’s myUSCIS online account, I suggest you check it to make sure it still works and if not, to immediately request a new password. After all of the changes proposed, it appeasers that this year’s lottery will work exactly like last year’s !
The USCIS has announced that the proposal to select H-1b lottery winners by wage level has been delayed until the end of this year to give the Administration time to review and assess the policy change. For this year’s H-1b cap lottery, FY 2022, the selection will remain random.
Hammond Neal Moore is excited to announce that Diane Haggiag has joined our firm. Diane will become the Managing Attorney for our LA office. Diane has over ten years of experience handling a variety of immigration matters focusing on business and investor related matters. She also has several years of experience as a corporate attorney and as in-house counsel. We are excited to add her breadth of experience to our team.
Today, the Senate confirmed Alejandro Mayorkas to head the Department of Homeland Security (DHS). The USCIS operates under the DHS. Secretary Mayorkas is the first confirmed leader of DHS in almost 2 years as President Trump refused to send his interim appointees in front of the Senate. Secretary Mayorkas was previously the head of USCIS during the Obama Administration. For more information on Secretary Mayorkas, here is a good summary.
Hammond Neal Moore is pleased to announce that our Arizona office has re-located to Midtown Phoenix. The new office is located at 2800 N. Central Ave Suite 1720. Cynthia Perez is the Managing Attorney of our Arizona office. Cynthia and our Arizona office handle a wide range of business based immigration cases.
There were 3 new regulations announced by the Trump Administration prior to their demise. They included:
1. A change to the way the H-1b lottery was conducted to emphasize level of pay
2. A change to the DOL methodology for setting prevailing wages using the OES
3. A change to the definition of employer-employee
Last week, the Biden Administration issued a regulatory freeze, commonly done when a new Administration takes over so they can review what is commonly referred to as midnight regulations. Relative to the 3 regulations referenced above, this freeze means that the change to the employer-employee definition is dead. The DOL has already withdrawn its interpretive memo which was to accompany the new USCIS rule. (see our blog post from 1-22-2021) As for the change to the DOL methodology in setting OES wages, the freeze means a 60 day review and possible changes or a complete withdrawal. Please note that the new wages were not to take effect until July 1, 2021 so regardless of what happens, the upcoming H-1b cap lottery season should not be impacted. There also remains pending Federal litigation on this rule. The future of the 1st announced regulation favoring Level 4 wages in the lottery selection and the all but guarantee that Level 1 registrations would not be selected, it is not clear what the White House may do. As part of the proposed comprehensive immigration bill which was sent to Congress last week, the White House released a Fact Sheet that outlined the broad principles of the Biden Bill and they state a desire to promote “higher wages for non-immigrant, high-skilled visas” This may be an indication that they support a change to the H-1b lottery selection process. We expect to have more definitive information as the H-1b lottery draws closer.
Last week, the Department of State (DOS) released the February Visa Bulletin and as expected, it remained largely unchanged. India and China EB1 saw several months of forward movement in the Final Action Date Chart but, other categories saw forward movement of only a few days. The USCIS announced that it would not honor the Dates For Filing Chart but, would only honor the Final Action Date Chart for I-485 filings. Given the difficulties they have had in issuing receipts for the I-485 filings they received in October, this is not a surprise. The DOS provided some projections over the coming months and indicated that those categories and countries that are now current are expected to remain current. They also expect EB1 for India and China to become current within the next few months. Finally, they also projected slow forward movement for all other categories and countries. Retrogression remains a major problem.
In a victory for legal immigration and particularly staffing employers, the DOL announced today that it was withdrawing its policy memo issued last Fri., which imposed additional requirements on staffing employers and their customers.
On this day, when the legal immigration world should be celebrating an incoming President that, at the very least, will not be anti legal immigration, we are still reading and trying to understand the implications of the new rules announced in the past week. Here is a link to a great summary from our friend Stuart Anderson. Many of the new rules target healthcare and IT occupations and employers. We will provide updates as actions are taken by President Biden.